Part II: Creating a Government
While the form of government adopted by the United States drew heavily on European sources, it was nonetheless distinctly American. The colonists, of course, brought English ideas with them when they crossed the Atlantic, but once here these ideas were slowly but definitely modified to reflect conditions in the New World.
The settlers, like their kin who stayed in England, believed that British government and the common law constituted the greatest protections of individual liberties that had ever existed. Magna Carta (1215) had laid down the great root principle of constitutional democracy, that a fundamental law exists beyond which no one, not even the king, may trespass. The rule of law, as it had developed in the centuries between Magna Carta and the first English settlement at Jamestown, came to encompass a parliament and a court system -- the first to represent the interests of the people to their rulers, and the second to provide impartial administration of justice. Although the executive power and the symbols of majesty remained with the monarch, the parliament gradually won an important share of power through its control of taxes and the purse. The judicial system achieved its authority by mastery of the intricacies of the law.
The British system, both in theory and in practice, relied on the existence of an upper class, an aristocracy which had the wealth, leisure and education to devote to the problems of governing. In their studies of government, English writers posited a society of distinct classes and interests, all of which would be balanced so that no one part could dominate the others. It was in parliament that the various groups in society would be represented, look after their own interests, advance the greater interest of the realm and, above all, jealously guard the rights and properties of the people.
It is not surprising that the colonists tried to emulate these institutions when they created their own governments. Moreover, they took with them some powerful ideas then beginning to circulate in the Mother Country, such as the notion that the Puritans had developed of a compact or covenant. In the New England colonies especially, the covenant theory became an essential part of political as well as religious thought, expressing the idea that people covenanted with one another to form a government that they were bound to obey, provided it did not exceed the authority granted to it.
In the 169 years between the landing at Jamestown and the signing of the Declaration of Independence, the colonial experience diverged significantly from its English roots. Here there was no established aristocracy; no leisure class could devote itself to government. The settlers looked to those of their neighbors who had talents and abilities for leadership, with the result that the Americans came to see government less as the preserve of the upper classes than as an instrument for all the people.1 Because colonial society was so fluid, the notion of a parliament representing fixed interests made little sense; moreover, the towns and rural areas that sent representatives to their colonial legislatures gave them directions, often instructing them on how to vote on particular issues. While it is true that a majority of the settlers were disenfranchised because of gender, race or lack of property, the fact remains that popular participation in the political process was far greater in the colonies in the eighteenth century than in the Mother Country.
The Americans, even as they separated from the Crown, nonetheless claimed that all they wanted was their rights as Englishmen. After independence, as they set about creating union and government, they relied on two sources of thought -- classic English political theory, and their own experiences. In the Articles of Confederation, the United States' first constitution, the framers relied more on theory, and aimed at creating a federal government that would avoid the problems associated with a strong central government, the very problem that had led to their revolt from Great Britain. But that system proved too weak for the task of governing the new nation, since it lacked sufficient powers. At the Philadelphia convention of 1787, John Dickinson, the chief author of the Articles, urged his fellow delegates: "Experience must be our only guide; reason may mislead us." The Constitution they drafted drew from both reason and experience, and as a result has proven a remarkably durable document.
But the Constitution, even after its adoption in 1788 and the addition of the first ten amendments, the Bill of Rights, in 1791, was little more than an outline of government. The Philadelphia convention had spelled out certain powers and limitations that it had considered important to have clearly articulated, but it left much of the actual operating structure to be worked out on the basis of experience. For example, there is no mention of a "cabinet" in the Constitution, yet George Washington, the first president, convened the heads of the executive departments on a regular basis to advise him, and the Cabinet has become part of the American government.
One unique aspect of the American system has been the role played by the courts. Although the Constitution set up three branches of government -- the legislative, executive and judicial -- it devoted relatively little space to the role of the courts, assuming that judges would know what to do. But unlike Great Britain, where there was little interplay between the courts and the other branches of government, in the United States the Supreme Court has become a balance wheel of constitutional government. The Supreme Court is the final arbiter of what the Constitution means. In many of its decisions in the last two centuries the Court has arbitrated between the executive and legislative branches, and has also spelled out both the powers and the limits of the federal government.
In the documents in this section, we see the beginnings of the American governmental system, and how it evolved into the basic constitutional scheme under which Americans still live.
Footnote 1: Granted, the Americans of the eighteenth century did not believe that everyone shared equally in this covenant, and over the next two hundred years the growth of democracy in America often focused on bringing these other groups, such as African Americans and women, into the social contract.
- The Mayflower Compact (1620)
- Fundamental Orders of Connecticut (1639)
- Albany Plain of Union (1754)
- The Northwest Ordinance (1787)
- Constitution of the United States (1787)
- James Madison, The Federalist No. 10 (1787)
- The Judiciary Act of 1789
- Marbury v. Madison (1803)
- McCulloch v. Maryland (1819)
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